Mr David Lill v Many Little

[2020] FWC 2180

[2020] FWC 2180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr David Lill
v
Many Little
(C2020/656)

DEPUTY PRESIDENT LAKE BRISBANE, 27 APRIL 2020

Application to deal with contravention involving dismissal – application made outside of statutory timeframe – extension of time.

[1] On 5 February 2020, Mr David Lill (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to his dismissal by Many Little (the Respondent). The Applicant did so by filing a Form F8 in hard copy with the Commission’s Registry in Melbourne.

[2] The Applicant’s employment commenced with the Respondent on 13 June 2019. Mr Lill resigned his employment on 8 January 2020, with effect on 9 January 2020. Mr Lill worked as a sous chef for the Respondent on a permanent basis for some time but changed to casual employment on 18 November 2019. Mr Lill submitted that he resigned his employment after a number of incidents with the Respondent’s head chef involving changes to rosters and revoking of Mr Lill’s shifts, which Mr Lill said led him to the conclusion that he was no longer welcome to work for the Respondent.

[3] Section 366(1) of the Act requires that an application under s. 365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s. 366(2) of the Act. The Applicant acknowledged that he lodged his 6 days outside the statutory time limit. To be within time, the Application should have lodged his application on or before 30 January 2020.

[4] The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[5] I issued directions for filing of material in the matter. Both the Applicant and Respondent were self represented. I determined the matter could be dealt with on the papers and sent correspondence to the parties requesting they advise whether they opposed this course of action. The parties advised they were content to have the matter determined on the papers.

Consideration of whether a further period should be granted

[6] As noted above, s. 366 of the Act requires that a general protections application under s. 365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 3662(2) of the Act.

[7] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[8] The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),2 the Full Bench of Fair Work Australiaconsidered the meaning of ‘exceptional circumstances’, concluding:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[9] For Mr Lill’s general protection application to proceed, it is necessary for him to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act. I now turn to address the particular matters to which regard must be had.

Consideration

Section 366(2)(a) – The reason for the delay

[10] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,5 the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

[11] Mr Lill’s application was made 27 days after his dismissal and was consequently 6 days out of time. Mr Lill provided several reasons as to why the application was lodged late.

[12] Mr Lill submitted that after his resignation, he went to search for professional legal aid as he did not want to go through the legal process by himself and needed help. Mr Lill said he was unsuccessful in finding professional legal aid. Mr Lill said he contacted ‘Fair Work’ and Jobwatch on 10 and 11 January 2020, but found both organisations did not offer legal advice.

[13] Mr Lill submitted he then contacted the Law Institute of Victoria who helped arrange two phone consultations. Mr Lill said he received no reply and thought that contacting the law firms within the time period would be enough.

[14] Mr Lill further submitted that after his dismissal, his main priority was “not to take the Respondent to court” but was to support and look after his family financially. Mr Lill said he needed a good length of time to look for work elsewhere, arrange interviews and trials, and he needed to find a workplace that suited his family needs.

[15] I do not consider these reasons constitute exceptional circumstances. Mr Lill sought legal advice and appears to have received that advice within the 21 days allowable for filing an application. While Mr Lill may have wanted to receive advice and assistance for filing his application, I am not satisfied this is an exceptional circumstance.

[16] Similarly, most employees who have been dismissed will naturally be concerned with finding alternative employment. While I have sympathy for Mr Lill, especially given the current global COVID-19 situation and the potential further difficulties to employment prospects that this may cause, I do not consider that the reasons given by Mr Lill weight in favour of granting an extension of time.

Section 366(2)(b) - Action taken to dispute the dismissal

[17] An action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the granting of an extension of time. 6

[18] As noted above, Mr Lill’s submission and evidence was that he sought advice as to his rights from various sources within the 21 day period following his dismissal. Mr Lill provided three documents to the Commission in respect of these inquiries.

[19] The first document was a digital letter titled Online Legal Referral Service – Letter of referral from the Law Institute of Victoria. The letter stated that the letter will offer a first inquiry interview to the applicant of no more than 30 minutes free of charge with the law firm listed below, and that the interview could be used to determine the nature of the legal issue, discuss available options, and receive an estimate of costs to proceed with the matter. The letter said that normal fees apply after the first 30 minutes, or if any additional work (including reading documentation and writing letters) needs to be prepared on the applicant’s behalf. The letter then referred Mr Lill to a private law firm for the consultation.

[20] The second and third documents are emails sent from Mr Lill to the law firm the Law Institute of Victoria referred Mr Lill to. The first email was sent to the law firm’s admin email address on 17 January 2020 and forwarded documents Mr Lill considered as relevant to his situation and identified things Mr Lill considered as noteworthy, including the fact his contract of employment changed from permanent to casual, the identities of some staff working at the restaurant for context, and an enquiry about how Mr Lill could seek compensation for overtime he said he worked as a full time employee but was not paid for:

“To whom it may concern,

Attached are all documents relating to my situation with many little.

A few things to note?

My employment contract had changed, we all signed a new contract. I have the email that the director sent us, but it was more for the health and safety aspect of the business it didn’t affect our work in any way. I just don’t have copy of the new contract on hand I would have to request it.

Maria is not on the roster, she is Simons partner a former employee of many little who quit around the start of December. Simon is a chef still currently working at many little.

I had no response from Gayan when I messaged him. An after all of this received no response from the owners, I will forward that email straight after I sent this.

Also since we are possibly going down this rout, how possible would it be to ask for compensation from all the overtime that I worked as full time. There were weeks I was doing 60 hours plus. And also there was supposed to be a pay review at the end of July which never got discussed. But in my first initial interview with Emma and Sam the owners they said that they would increase pay to $80,000 per year.

Kind regard.

David Lill”

[21] The second email, sent on 23 January 2020, was simply forwarding the first email to a specific email address at the law firm.

[22] This case is somewhat analogous to McLennan v Northern Territory Stolen Generations Aboriginal Corporation[2012] FWA 3167 (McLennan). While a decision contemplating granting an extension of time to a s.394 application for unfair dismissal, the factors required to be considered under s.394(3) are virtually identical to those to be considered under s.366(2).

[23] In McLennan, the applicant sought advice from the Australian Services Union (the ASU) as it was at the time. The applicant was a member of the ASU. In her decision, Spencer C found:

“[32] The Applicant submitted that she was advised of her termination by Ms O’Donnell via telephone on Thursday, 6 October 2011. This has been found to be 5 October 2011. The following week she contacted the Union who then, on the Applicant’s submission, took ‘sometime’ before responding to her enquiries, regarding her options. The Applicant does not indicate how long it took for the Union to respond to her, nor what the Applicant’s enquiries were, nor what the Union’s advice was in relation to the lodgement of an application for an unfair dismissal remedy to FWA.

[33] On the evidence, there is no firm basis as to why the Applicant held such a belief that the Union would lodge her application on her behalf. The particular circumstances of this matter suggest that it would fall within the first example provided in the matter of McConnel v A and P M Fornataro, outlined above. That is, there is no evidence to suggest that the Applicant gave clear instructions to the Union to lodge an application, nor is there evidence to suggest that the Applicant took sufficient steps to enquire as to the status of her claim.” 7

[24] In this case, Mr Lill sought advice from a particular firm as referred by the Law Institute of Victoria. There is no evidence that the firm elected to take Mr Lill’s case. It is quite common for law firms to provide free, pro-bono or low-cost initial consultations to help individuals assess whether their case has merit or to provide initial advice. This does not extend to an obligation to represent an individual, or indeed, an obligation to commence proceedings for that individual.

[25] I do not consider Mr Lill’s actions in seeking legal advice constitute grounds for granting an extension of time. While Mr Lill contends he sought advice regarding his dismissal, the correspondence sent to the law firm who provided his consultation show that he sought advice regarding perceived underpayments and contract issues. These carry different timeframes for filing of material.

[26] Where an employee has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted. 8 It is regrettable that Mr Lill’s enquiries were not addressed quickly but given there is no evidence the firm took Mr Lill’s case, I do not consider that there was any form of representative error as the firm was not representing Mr Lill. There is no evidence the firm agreed to file any documentation for Mr Lill including the filing of the Form F8, and no evidence of any clear instructions from Mr Lill to do so.

[27] Further, there is no evidence Mr Lill sought to raise his intention to dispute his dismissal with the Respondent, or indeed any evidence that the matter was actively disputed. On the contrary, there was a clear and unambiguous letter of resignation from Mr Lill.

[28] I consider the actions taken by Mr Lill do not weigh in favour of granting an extension of time.

Section 366(2)(c) - Prejudice to the employer

[29] In considering this factor, the employer must produce evidence to demonstrate prejudice. It is then a matter for the applicant to show the facts do not amount to prejudice. 9

[30] The Respondent made no submission in relation to this factor and presented no evidence of any prejudice.

[31] The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 10 I consider this factor to be neutral.

Section 366(2)(d) - Merits of the Application

[32] In Kornicki v Telstra-Network Technology Group, 11 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[33] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’ 12

[34] In considering the merits of the case, there are significant contests of fact to be determined between Mr Lill’s version of events and that of the Respondent. However, I observe that even if an extension of time was granted, there is a significant threshold issue to be determined in that Mr Lill would need to show his resignation was a constructive dismissal.

[35] Mr Lill being unhappy with his treatment the Respondent’s head chef is not likely to be constructive dismissal. There were other options open to Mr Lill if he considered he was being bullied or treated unfairly. However, if a demotion involves a significant reduction in duties or remuneration, it may constitute a ‘dismissal’, even if the person demoted remains employed by the employer. 13

[36] As noted, there is a significant dispute of fact in the matter. Without a proper hearing and assessment of all the evidence in this matter, this is a neutral determination.

Section 366(2)(e) - Fairness as between the Applicant and other persons in a like position

[37] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 14

[38] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

[39] Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist in this matter.

[40] Pursuant to section 366(2) of the Act, the extension of time is denied, and the section 365 application is dismissed. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR718601>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14]

 2   [2019] FWC 25

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9]

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]

 5   [2018] FWCFB 901

 6   Brodie-Hanns v. MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 7   McLennan v Northern Territory Stolen Generations Aboriginal Corporation[2012] FWA 3167 at [32]-[33]

 8   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420

 9   Cowie v State Electricity Commission of Victoria [1964] VR 788

 10   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300

 11   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C

 12   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at para. 14

 13   Gerrard v UPS Pty Ltd PR944681 (AIRC, Eames C, 19 March 2004); Blair v Chubb Security Australia Pty Ltd PR936527 (AIRC, Whelan C, 19 August 2003)

 14   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31]